regulatory powers (standard provisions) act 2014 no. 93, 2014

Note: An electronic version of this Act is available in ComLaw (http://www.comlaw.gov.au/)

Regulatory Powers (Standard

Provisions) Act 2014

No. 93, 2014

An Act in relation to monitoring, investigation and

enforcement by regulatory agencies, and for related

purposes

ComLaw Authoritative Act C2014A00093

No. 93, 2014 Regulatory Powers (Standard Provisions) Act 2014 i

Contents

Part 1—Preliminary 2 1 Short title ........................................................................................... 2 2 Commencement ................................................................................. 2 3 Simplified outline .............................................................................. 3 4 Dictionary ......................................................................................... 3 5 Binding the Crown ............................................................................ 7

Part 2—Monitoring 8

Division 1—Outline and operation of this Part 8 6 Simplified outline .............................................................................. 8 7 Purpose and operation of this Part ..................................................... 9 8 Provisions subject to monitoring ....................................................... 9 9 Information subject to monitoring ..................................................... 9 10 Related provisions ........................................................................... 10 11 Authorised applicant ....................................................................... 10 12 Authorised person ............................................................................ 11 13 Identity card .................................................................................... 11 14 Issuing officer .................................................................................. 11 15 Relevant chief executive................................................................... 12 16 Relevant court .................................................................................. 13 17 Privileges not abrogated .................................................................. 13

Division 2—Powers of authorised persons 15

Subdivision A—Monitoring powers 15 18 Entering premises by consent or under a warrant ............................ 15 19 General monitoring powers ............................................................. 15 20 Operating electronic equipment ....................................................... 16 21 Securing electronic equipment to obtain expert assistance .............. 17 22 Securing evidence of the contravention of a related provision ........ 18 23 Persons assisting authorised persons ............................................... 19

Subdivision B—Powers to ask questions and seek production of

documents 20 24 Asking questions and seeking production of documents ................. 20

Division 3—Obligations and incidental powers of authorised

persons 22 25 Consent ............................................................................................ 22 26 Announcement before entry under warrant ..................................... 22 27 Authorised person to be in possession of warrant ............................ 23


ii Regulatory Powers (Standard Provisions) Act 2014 No. 93, 2014

28 Details of warrant etc. to be given to occupier ................................ 23 29 Compensation for damage to electronic equipment ......................... 23

Division 4—Occupier’s rights and responsibilities 25 30 Right to observe execution of warrant ............................................. 25 31 Responsibility to provide facilities and assistance ........................... 25

Division 5—Monitoring warrants 26 32 Monitoring warrants ........................................................................ 26

Division 6—Extension of periods in which things secured 28 33 Extension of periods in which things secured .................................. 28

Division 7—Powers of issuing officers 29 34 Powers of issuing officers ................................................................ 29

Division 8—Identity cards 30 35 Identity cards ................................................................................... 30

Part 3—Investigation 31

Division 1—Outline and operation of this Part 31 36 Simplified outline ............................................................................ 31 37 Purpose and operation of this Part ................................................... 32 38 Provisions subject to investigation .................................................. 32 39 Evidential material .......................................................................... 32 40 Related provisions ........................................................................... 33 41 Authorised applicant ....................................................................... 33 42 Authorised person ............................................................................ 33 43 Identity card .................................................................................... 34 44 Issuing officer .................................................................................. 34 45 Relevant chief executive................................................................... 35 46 Relevant court .................................................................................. 35 47 Privileges not abrogated .................................................................. 36

Division 2—Powers of authorised persons 37

Subdivision A—Investigation powers 37 48 Entering premises by consent or under a warrant ............................ 37 49 General investigation powers .......................................................... 37 50 Operating electronic equipment ....................................................... 38 51 Securing electronic equipment to obtain expert assistance .............. 39 52 Seizing evidence of related provisions ............................................ 41 53 Persons assisting authorised persons ............................................... 41


documents 42


No. 93, 2014 Regulatory Powers (Standard Provisions) Act 2014 iii

54 Asking questions and seeking production of documents ................. 42

Division 3—Obligations and incidental powers of authorised

persons 44 55 Consent ............................................................................................ 44 56 Announcement before entry under warrant ..................................... 44 57 Authorised person to be in possession of warrant ............................ 45 58 Details of warrant etc. to be given to occupier ................................ 45 59 Completing execution after temporary cessation ............................. 46 60 Completing execution of warrant stopped by court order ................ 47 61 Compensation for damage to electronic equipment ......................... 47

Division 4—Occupier’s rights and responsibilities 49 62 Right to observe execution of warrant ............................................. 49 63 Responsibility to provide facilities and assistance ........................... 49

Division 5—General provisions relating to seizure 50 64 Copies of seized things to be provided ............................................ 50 65 Receipts for seized things ................................................................ 50 66 Return of seized things .................................................................... 50 67 Issuing officer may permit a thing to be retained ............................ 51 68 Disposal of things ............................................................................ 52 69 Compensation for acquisition of property ....................................... 53

Division 6—Investigation warrants 54 70 Investigation warrants ..................................................................... 54 71 Investigation warrants by telephone, fax etc. ................................... 55 72 Authority of warrant ........................................................................ 57 73 Offence relating to warrants by telephone, fax etc. ......................... 57

Division 7—Extension of periods in which things secured 59 74 Extension of periods in which things secured .................................. 59

Division 8—Powers of issuing officers 60 75 Powers of issuing officers ................................................................ 60

Division 9—Identity cards 61 76 Identity cards ................................................................................... 61

Part 4—Civil penalty provisions 62

Division 1—Outline and operation of this Part 62 77 Simplified outline ............................................................................ 62 78 Purposes and operation of this Part.................................................. 62 79 Enforceable civil penalty provisions ............................................... 62 80 Authorised applicant ....................................................................... 63


iv Regulatory Powers (Standard Provisions) Act 2014 No. 93, 2014

81 Relevant court .................................................................................. 64

Division 2—Obtaining a civil penalty order 65 82 Civil penalty orders ......................................................................... 65 83 Civil enforcement of penalty ........................................................... 66 84 Conduct contravening more than one civil penalty provision .......... 66 85 Multiple contraventions ................................................................... 66 86 Proceedings may be heard together ................................................. 66 87 Civil evidence and procedure rules for civil penalty orders ............. 67

Division 3—Civil proceedings and criminal proceedings 68 88 Civil proceedings after criminal proceedings .................................. 68 89 Criminal proceedings during civil proceedings ............................... 68 90 Criminal proceedings after civil proceedings .................................. 68 91 Evidence given in civil proceedings not admissible in

criminal proceedings ....................................................................... 69

Division 4—Miscellaneous 70 92 Ancillary contravention of civil penalty provisions ......................... 70 93 Continuing contraventions of civil penalty provisions .................... 70 94 State of mind ................................................................................... 71 95 Mistake of fact ................................................................................. 71 96 Exceptions etc. to civil penalty provisions—burden of proof .......... 72 97 Civil penalty provisions contravened by employees, agents

or officers ........................................................................................ 72

Part 5—Infringement notices 73

Division 1—Outline and operation of this Part 73 98 Simplified outline ............................................................................ 73 99 Purpose and operation of this Part ................................................... 73 100 Provisions subject to infringement notices ...................................... 74 101 Infringement officer ......................................................................... 74 102 Relevant chief executive................................................................... 74

Division 2—Infringement notices 76 103 When an infringement notice may be given .................................... 76 104 Matters to be included in an infringement notice............................. 76 105 Extension of time to pay amount ..................................................... 78 106 Withdrawal of an infringement notice ............................................. 79 107 Effect of payment of amount ........................................................... 81 108 Effect of this Part ............................................................................. 82


No. 93, 2014 Regulatory Powers (Standard Provisions) Act 2014 v

Part 6—Enforceable undertakings 83

Division 1—Outline and operation of this Part 83 109 Simplified outline ............................................................................ 83 110 Purpose and operation of this Part ................................................... 83 111 Enforceable provisions .................................................................... 83 112 Authorised person ............................................................................ 84 113 Relevant court .................................................................................. 84

Division 2—Accepting and enforcing undertakings 85 114 Acceptance of undertakings ............................................................. 85 115 Enforcement of undertakings ........................................................... 85

Part 7—Injunctions 87

Division 1—Outline and operation of this Part 87 116 Simplified outline ............................................................................ 87 117 Purpose and operation of this Part ................................................... 87 118 Enforceable provisions .................................................................... 87 119 Authorised person ............................................................................ 87 120 Relevant court .................................................................................. 88

Division 2—Injunctions 89 121 Grant of injunctions ......................................................................... 89 122 Interim injunctions........................................................................... 89 123 Discharging or varying injunctions.................................................. 90 124 Certain limits on granting injunctions not to apply .......................... 90 125 Other powers of a relevant court unaffected .................................... 90

Part 8—General provisions 91 126 Regulations ...................................................................................... 91


No. 93, 2014 Regulatory Powers (Standard Provisions) Act 2014 1

Regulatory Powers (Standard

Provisions) Act 2014

No. 93, 2014

An Act in relation to monitoring, investigation and

enforcement by regulatory agencies, and for related

purposes

[Assented to 21 July 2014]

The Parliament of Australia enacts:


Part 1 Preliminary

Section 1

2 Regulatory Powers (Standard Provisions) Act 2014 No. 93, 2014

Part 1—Preliminary

1 Short title

This Act may be cited as the Regulatory Powers (Standard

Provisions) Act 2014.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1 Column 2 Column 3

Provision(s) Commencement Date/Details

1. Part 1 and

anything in this

Act not elsewhere

covered by this

table

The day this Act receives the Royal Assent. 21 July 2014

2. Parts 2 to 7 A day or days to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

1 October 2014

(F2014L01258)

3. Part 8 The day this Act receives the Royal Assent. 21 July 2014

Note: This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.


Preliminary Part 1

Section 3


3 Simplified outline

The following is a simplified outline of this Act:

This Act creates a framework for each of the following:

(a) monitoring whether provisions of an Act or a legislative

instrument have been, or are being, complied with;

(b) monitoring whether information given in compliance, or

purported compliance, with a provision of an Act or a

legislative instrument is correct;

(c) gathering material that relates to the contravention of an

offence provision or a civil penalty provision;

(d) the use of civil penalties to enforce provisions;

(e) the use of infringement notices where there is a

reasonable belief that a provision has been contravened;

(f) the acceptance and enforcement of undertakings relating

to compliance with provisions;

(g) the use of injunctions to enforce provisions.

A provision of an Act or a legislative instrument is not subject to

monitoring, investigation or enforcement under this Act by force of

this Act. This Act must be triggered by another Act.

4 Dictionary

In this Act:

authorised applicant:

(a) in Part 2 (monitoring)—has the meaning given by section 11;

and

(b) in Part 3 (investigation)—has the meaning given by

section 41; and

(c) in Part 4 (civil penalty provisions)—has the meaning given

by section 80.

authorised person:


and


Part 1 Preliminary

Section 4



section 42; and

(c) in Part 6 (enforceable undertakings)—has the meaning given

by section 112; and

(d) in Part 7 (injunctions)—has the meaning given by

section 119.

civil penalty order has the meaning given by subsection 82(4).

civil penalty provision has the meaning given by subsection 79(2).

conduct means:

(a) an act; or

(b) a failure to act.

damage, in relation to data, includes damage by erasure of data or

addition of other data.

enforceable:

(a) in Part 4 (civil penalty provisions)—has the meaning given

by section 79; and

(b) in Part 6 (enforceable undertakings)—has the meaning given

by section 111; and

(c) in Part 7 (injunctions)—has the meaning given by

section 118.

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

evidential material has the meaning given by section 39.

identity card:


and


section 43.

infringement officer has the meaning given by section 101.


Preliminary Part 1

Section 4


investigation powers has the meaning given by sections 49, 50, 51

and 52.

investigation warrant means:

(a) a warrant issued by an issuing officer under section 70; or

(b) a warrant signed by an issuing officer under section 71.

issuing officer:


and


section 44.

judicial officer means:

(a) a magistrate; or

(b) a Judge of a court of a State or Territory; or

(c) a Judge of the Federal Circuit Court of Australia; or

(d) a Judge of the Federal Court of Australia.

monitoring powers has the meaning given by sections 19, 20, 21

and 22.

monitoring warrant means a warrant issued under section 32.

person assisting an authorised person:


and


section 53.

premises includes the following:

(a) a structure, building, vehicle, vessel or aircraft;

(b) a place (whether or not enclosed or built on);

(c) a part of a thing referred to in paragraph (a) or (b).

related: a provision is related:

(a) in Part 2 (monitoring)—to another provision or information

in the circumstances set out in section 10; and


Part 1 Preliminary

Section 4


(b) in Part 3 (investigation)—to evidential material in the

circumstances set out in section 40.

relevant chief executive:


and


section 45; and

(c) in Part 5 (infringement notices)—has the meaning given by

section 102.

relevant court:


and


section 46; and

(c) in Part 4 (civil penalty provisions)—has the meaning given

by section 81; and

(d) in Part 6 (enforceable undertakings)—has the meaning given

by section 113; and

(e) in Part 7 (injunctions)—has the meaning given by

section 120.

relevant data, in Part 2 (monitoring), has the meaning given by

subsection 20(3).

subject to an infringement notice, in relation to an offence

provision or civil penalty provision, has the meaning given by

section 100.

subject to investigation, in relation to an offence provision or a

civil penalty provision, has the meaning given by section 38.

subject to monitoring:

(a) in relation to a provision of an Act or a legislative

instrument—has the meaning given by section 8; and

(b) in relation to information given in compliance, or purported

compliance, with a provision of an Act or a legislative

instrument—has the meaning given by section 9.


Preliminary Part 1

Section 5


5 Binding the Crown

This Act binds the Crown in each of its capacities.


Part 2 Monitoring

Division 1 Outline and operation of this Part

Section 6


Part 2—Monitoring

Division 1—Outline and operation of this Part


The following is a simplified outline of this Part:

This Part creates a framework for monitoring whether the

provisions of an Act or a legislative instrument have been, or are

being, complied with.

It also creates a framework for monitoring whether information

given in compliance, or purported compliance, with a provision of

an Act or a legislative instrument is correct.

For this Part to operate, a provision or information must be made

subject to monitoring under this Part. This is to be done by another

Act.

An authorised person may enter premises for the purpose of

monitoring.

Entry must be with the consent of the occupier of the premises or

under a monitoring warrant.

An authorised person who enters premises may exercise

monitoring powers. The authorised person may be assisted by other

persons if that assistance is necessary and reasonable and another

Act empowers the authorised person to do so.

An occupier’s consent to an authorised person entering premises

for the purposes of monitoring must be voluntary. Authorised

persons must abide by the terms of that consent.

An authorised person who enters premises under a monitoring

warrant must give details of the warrant to the occupier of the

premises.


Monitoring Part 2

Outline and operation of this Part Division 1

Section 7


The occupier of the premises may observe the execution of a

monitoring warrant and must provide reasonable facilities and

assistance for the effective execution of the warrant.

7 Purpose and operation of this Part

(1) The principal purpose of this Part is to create a framework for

monitoring whether:

(a) provisions of an Act or a legislative instrument have been, or

are being, complied with; and

(b) information given in compliance, or purported compliance,

with a provision of an Act or a legislative instrument is

correct.

(2) However, for this Part to operate, either or both of the following

must apply:

(a) a provision of an Act or a legislative instrument must be

made subject to monitoring under this Part;

(b) information given in compliance, or purported compliance,

with a provision of an Act or a legislative instrument must be

made subject to monitoring under this Part.

8 Provisions subject to monitoring

A provision of an Act or a legislative instrument is subject to

monitoring under this Part if an Act provides that the provision is

subject to monitoring under this Part.

9 Information subject to monitoring

Information given in compliance, or purported compliance, with a

provision of an Act or a legislative instrument is subject to

monitoring under this Part if an Act provides that the information

is subject to monitoring under this Part.


Part 2 Monitoring


Section 10


10 Related provisions

(1) A provision is related to a provision that is subject to monitoring

under this Part (the monitored provision) if an Act provides that

the provision is related to the monitored provision.

(2) A provision is related to information that is subject to monitoring

under this Part if an Act provides that the provision is related to the

information.

11 Authorised applicant

(1) A person is an authorised applicant for the purposes of exercising

powers under this Part to determine whether:

(a) a provision subject to monitoring under this Part has been, or

is being, complied with; or

(b) information subject to monitoring under this Part is correct;

if an Act provides that the person is an authorised applicant in

relation to that provision or information for the purposes of this

Part.

(2) A person who is an authorised applicant for the purpose of

exercising powers mentioned in subsection (1) is also an

authorised applicant for the purposes of:

(a) exercising other powers under this Part; or

(b) performing functions or duties under this Part;

that are incidental to the powers mentioned in subsection (1).

(3) Without limiting subsection (1), an Act may provide that a person

is an authorised applicant in relation to a provision or information

for the purposes of this Part by:

(a) providing that a person of a specified class is an authorised

applicant in relation to the provision or information for the

purposes of this Part; or

(b) authorising another person to specify that a person, or a

person of a specified class, is an authorised applicant in

relation to the provision or information for the purposes of

this Part.


Monitoring Part 2


Section 12


12 Authorised person

(1) A person is an authorised person for the purposes of exercising

powers under this Part to determine whether:




if an Act provides that the person is an authorised person in


Part.

(2) A person who is an authorised person for the purpose of


authorised person for the purposes of:





is an authorised person in relation to a provision or information for

the purposes of this Part by:


person in relation to the provision or information for the



person of a specified class, is an authorised person in relation

to the provision or information for the purposes of this Part.

13 Identity card

Identity card, in relation to a person who is an authorised person in

relation to a provision or information for the purposes of this Part,

means a card issued to the person under section 35 by the relevant

chief executive in relation to that provision or information.

14 Issuing officer

(1) A judicial officer is an issuing officer for the purposes of

exercising powers under this Part to determine whether:


Part 2 Monitoring


Section 15





if an Act provides that the judicial officer is an issuing officer in


Part.

(2) A judicial officer who is an issuing officer for the purpose of

exercising powers mentioned in subsection (1) is also an issuing

officer for the purposes of exercising other powers under this Part


(3) Without limiting subsection (1), an Act may provide that a judicial

officer is an issuing officer in relation to a provision or information

for the purposes of this Part by:

(a) providing that a judicial officer of a specified class is an

issuing officer in relation to the provision or information for

the purposes of this Part; or

(b) authorising another person to specify that a judicial officer,

or a judicial officer of a specified class, is an issuing officer

in relation to the provision or information for the purposes of

this Part.

15 Relevant chief executive

(1) A person is the relevant chief executive for the purposes of

exercising powers under this Part that relate to an authorised

person in relation to a provision or information for the purposes of

this Part, if an Act provides that the person is the relevant chief

executive for the purposes of this Part in relation to the provision

or information.

(2) A person who is the relevant chief executive for the purpose of

exercising powers mentioned in subsection (1) is also the relevant

chief executive for the purposes of:





Monitoring Part 2


Section 16



is the relevant chief executive in relation to a provision or

information for the purposes of this Part by:

(a) providing that a person who holds a specified office is the

relevant chief executive in relation to the provision or

information for those purposes; or


person who holds a specified office, is the relevant chief

executive in relation to the provision or information for those

purposes.

16 Relevant court

A court is a relevant court in relation to a matter that arises

because of:

(a) the exercise of powers by a person under this Part to

determine whether:

(i) a provision subject to monitoring under this Part has

been, or is being, complied with; or

(ii) information subject to monitoring under this Part is

correct; or

(b) the exercise of powers, or the performance of functions or

duties, under this Part that are incidental to the powers

mentioned in paragraph (a);

if an Act provides that the court is a relevant court in relation to

that provision or information for the purposes of this Part.

17 Privileges not abrogated

Self-incrimination

(1) Nothing in this Part affects the right of a person to refuse to answer

a question, give information, or produce a document, on the ground

that the answer to the question, the information, or the production

of the document, might tend to incriminate him or her or make him

or her liable to a penalty.


Part 2 Monitoring


Section 17


Legal professional privilege



that:

(a) the answer to the question or the information would be

privileged from being given on the ground of legal

professional privilege; or

(b) the document would be privileged from being produced on

the ground of legal professional privilege.

Other legislation not affected

(3) The fact that this section is included in this Part does not imply that

the privilege against self-incrimination or legal professional

privilege is abrogated in any other Act.


Monitoring Part 2

Powers of authorised persons Division 2

Section 18


Division 2—Powers of authorised persons

Subdivision A—Monitoring powers

18 Entering premises by consent or under a warrant

(1) An authorised person may enter any premises and exercise the

monitoring powers for either or both of the following purposes:

(a) determining whether a provision subject to monitoring under

this Part has been, or is being, complied with;

(b) determining whether information subject to monitoring under

this Part is correct.

Note: The monitoring powers are set out in sections 19, 20, 21 and 22.

(2) However, an authorised person is not authorised to enter the

premises unless:

(a) the occupier of the premises has consented to the entry; or

(b) the entry is made under a monitoring warrant.

Note: If entry to the premises is with the occupier’s consent, the authorised

person must leave the premises if the consent ceases to have effect

(see section 25).

19 General monitoring powers

The following are the monitoring powers that an authorised person

may exercise in relation to premises under section 18:

(a) the power to search the premises and any thing on the

premises;

(b) the power to examine or observe any activity conducted on

the premises;

(c) the power to inspect, examine, take measurements of or

conduct tests on any thing on the premises;

(d) the power to make any still or moving image or any

recording of the premises or any thing on the premises;

(e) the power to inspect any document on the premises;

(f) the power to take extracts from, or make copies of, any such

document;


Part 2 Monitoring

Division 2 Powers of authorised persons

Section 20


(g) the power to take onto the premises such equipment and

materials as the authorised person requires for the purpose of

exercising powers in relation to the premises;

(h) the powers set out in subsections 20(1) and (4), 21(2) and

22(1).

20 Operating electronic equipment

(1) The monitoring powers include the power to:

(a) operate electronic equipment on the premises; and

(b) use a disk, tape or other storage device that:

(i) is on the premises; and

(ii) can be used with the equipment or is associated with it.

(2) The monitoring powers include the powers mentioned in

subsection (4) if relevant data is found in the exercise of the power

under subsection (1).

(3) Relevant data means information relevant to determining whether:

(a) a provision that is subject to monitoring under this Part has


(b) information subject to monitoring under this Part is correct.

(4) The powers are as follows:

(a) the power to operate electronic equipment on the premises to

put the relevant data in documentary form and remove the

documents so produced from the premises;

(b) the power to operate electronic equipment on the premises to

transfer the relevant data to a disk, tape or other storage

device that:

(i) is brought to the premises for the exercise of the power;

or

(ii) is on the premises and the use of which for that purpose

has been agreed in writing by the occupier of the

premises;

and remove the disk, tape or other storage device from the

premises.


Monitoring Part 2


Section 21


(5) An authorised person may operate electronic equipment as

mentioned in subsection (1) or (4) only if the authorised person

believes on reasonable grounds that the operation of the equipment

can be carried out without damage to the equipment.

Note: For compensation for damage to electronic equipment, see section 29.

21 Securing electronic equipment to obtain expert assistance

(1) This section applies if an authorised person enters premises under a

monitoring warrant.

Securing equipment

(2) The monitoring powers include the power to secure any electronic

equipment that is on the premises if the authorised person suspects

on reasonable grounds that:

(a) there is relevant data on the premises; and

(b) the relevant data may be accessible by operating the

equipment; and

(c) expert assistance is required to operate the equipment; and

(d) the relevant data may be destroyed, altered or otherwise

interfered with, if the authorised person does not take action

under this subsection.

The equipment may be secured by locking it up, placing a guard or

any other means.

(3) The authorised person must give notice to the occupier of the

premises, or another person who apparently represents the

occupier, of:

(a) the authorised person’s intention to secure the equipment;

and

(b) the fact that the equipment may be secured for up to 24

hours.

Period equipment may be secured

(4) The equipment may be secured until the earlier of the following

happens:

(a) the 24-hour period ends;


Part 2 Monitoring


Section 22


(b) the equipment has been operated by the expert.


Extensions

(5) The authorised person may apply to an issuing officer for an

extension of the 24-hour period if the authorised person believes on

reasonable grounds that the equipment needs to be secured for

longer than that period.

(6) Before making the application, the authorised person must give

notice to the occupier of the premises, or another person who

apparently represents the occupier, of his or her intention to apply

for an extension. The occupier or other person is entitled to be

heard in relation to that application.

(7) The 24-hour period may be extended more than once.

Note: For the process by which an issuing officer may extend the period, see

section 33.

22 Securing evidence of the contravention of a related provision

(1) The monitoring powers include the power to secure a thing for a

period not exceeding 24 hours if:

(a) the thing is found during the exercise of monitoring powers

on the premises; and

(b) an authorised person believes on reasonable grounds that:

(i) a related provision has been contravened with respect to

the thing; or

(ii) the thing affords evidence of the contravention of a

related provision; or

(iii) the thing is intended to be used for the purpose of

contravening a related provision; and

(c) the authorised person believes on reasonable grounds that:

(i) it is necessary to secure the thing in order to prevent it

from being concealed, lost or destroyed before a warrant

to seize the thing is obtained; and

(ii) it is necessary to secure the thing without a warrant

because the circumstances are serious and urgent.


Monitoring Part 2


Section 23



any other means.

Extensions


extension of the 24-hour period if the authorised person believes on

reasonable grounds that the thing needs to be secured for more than

that period.



apparently represents the occupier, of his or her intention to apply

for an extension. The occupier or other person is entitled to be

heard in relation to that application.



section 33.

23 Persons assisting authorised persons

Authorised persons may be assisted by other persons

(1) An authorised person may be assisted by other persons in

exercising powers or performing functions or duties under this

Part, if:

(a) that assistance is necessary and reasonable; and

(b) another Act empowers the authorised person to be assisted.

A person giving such assistance is a person assisting the

authorised person.

Powers, functions and duties of a person assisting

(2) A person assisting the authorised person:

(a) may enter the premises; and

(b) may exercise powers under this Part for the purposes of

assisting the authorised person to determine whether:

(i) a provision subject to monitoring under this Part has



Part 2 Monitoring


Section 24


(ii) information subject to monitoring under this Part is

correct; and

(c) may exercise powers and perform functions and duties under

this Part that are incidental to the powers mentioned in

paragraph (b); and

(d) must do so in accordance with a direction given to the person

assisting by the authorised person.

(3) A power exercised by a person assisting the authorised person as

mentioned in subsection (2) is taken for all purposes to have been

exercised by the authorised person.

(4) A function or duty performed by a person assisting the authorised

person as mentioned in subsection (2) is taken for all purposes to

have been performed by the authorised person.

(5) If a direction is given under paragraph (2)(d) in writing, the

direction is not a legislative instrument.


documents

24 Asking questions and seeking production of documents

Application

(1) This section applies if an authorised person enters premises for the

purposes of determining whether:




Entry with consent

(2) If the entry is authorised because the occupier of the premises

consented to the entry, the authorised person may ask the occupier

to answer any questions, and produce any document, relating to:

(a) the operation of the provision; or

(b) the information.


Monitoring Part 2


Section 24


Entry under a monitoring warrant

(3) If the entry is authorised by a monitoring warrant, the authorised

person may require any person on the premises to answer any

questions, and produce any document, relating to:

(a) the operation of the provision; or

(b) the information.

(4) A person is not subject to a requirement under subsection (3) if:

(a) the person does not possess the information or document

required; and

(b) the person has taken all reasonable steps available to the

person to obtain the information or document required and

has been unable to obtain it.

Offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under subsection (3);

and

(b) the person fails to comply with the requirement.

Penalty for contravention of this subsection: 30 penalty units.


Part 2 Monitoring

Division 3 Obligations and incidental powers of authorised persons

Section 25


Division 3—Obligations and incidental powers of

authorised persons

25 Consent

(1) Before obtaining the consent of an occupier of premises for the

purposes of paragraph 18(2)(a), an authorised person must inform

the occupier that the occupier may refuse consent.

(2) A consent has no effect unless the consent is voluntary.

(3) A consent may be expressed to be limited to entry during a

particular period. If so, the consent has effect for that period unless

the consent is withdrawn before the end of that period.

(4) A consent that is not limited as mentioned in subsection (3) has

effect until the consent is withdrawn.

(5) If an authorised person entered premises because of the consent of

the occupier of the premises, the authorised person, and any person

assisting the authorised person, must leave the premises if the

consent ceases to have effect.

(6) If:

(a) an authorised person enters premises because of the consent

of the occupier of the premises; and

(b) the authorised person has not shown the occupier his or her

identity card before entering the premises;

the authorised person must do so on, or as soon as is reasonably

practicable after, entering the premises.

26 Announcement before entry under warrant

Before entering premises under a monitoring warrant, an

authorised person must:

(a) announce that he or she is authorised to enter the premises;

and


Monitoring Part 2

Obligations and incidental powers of authorised persons Division 3

Section 27


(b) show his or her identity card to the occupier of the premises,

or to another person who apparently represents the occupier,

if the occupier or other person is present at the premises; and

(c) give any person at the premises an opportunity to allow entry

to the premises.

27 Authorised person to be in possession of warrant

An authorised person executing a monitoring warrant must be in

possession of the warrant or a copy of the warrant.

28 Details of warrant etc. to be given to occupier

(1) An authorised person must comply with subsection (2) if:

(a) a monitoring warrant is being executed in relation to

premises; and

(b) the occupier of the premises, or another person who

apparently represents the occupier, is present at the premises.

(2) The authorised person must, as soon as practicable:

(a) make a copy of the warrant available to the occupier or other

person; and

(b) inform the occupier or other person in writing of the rights

and responsibilities of the occupier or other person under

Division 4.

29 Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of electronic equipment being operated as

mentioned in this Part:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or


Part 2 Monitoring


Section 29


(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in a relevant

court for such reasonable amount of compensation as the court

determines.

(4) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises, or the occupier’s

employees or agents, if they were available at the time, provided

any appropriate warning or guidance on the operation of the

equipment.


Monitoring Part 2

Occupier’s rights and responsibilities Division 4

Section 30


Division 4—Occupier’s rights and responsibilities

30 Right to observe execution of warrant

(1) The occupier of premises to which a monitoring warrant relates, or

another person who apparently represents the occupier, is entitled

to observe the execution of the monitoring warrant if the occupier

or other person is present at the premises while the warrant is being

executed.

(2) The right to observe the execution of the warrant ceases if the

occupier or other person impedes that execution.

(3) This section does not prevent the execution of the warrant in 2 or

more areas of the premises at the same time.

31 Responsibility to provide facilities and assistance

(1) The occupier of premises to which a monitoring warrant relates, or

another person who apparently represents the occupier, must

provide:

(a) an authorised person executing the warrant; and

(b) any person assisting the authorised person;

with all reasonable facilities and assistance for the effective

exercise of their powers.


(a) the person is subject to subsection (1); and

(b) the person fails to comply with that subsection.



Part 2 Monitoring

Division 5 Monitoring warrants

Section 32


Division 5—Monitoring warrants

32 Monitoring warrants

Application for warrant

(1) An authorised applicant may apply to an issuing officer for a

warrant under this section in relation to premises.

Issue of warrant

(2) The issuing officer may issue the warrant if the issuing officer is

satisfied, by information on oath or affirmation, that it is

reasonably necessary that one or more authorised persons should

have access to the premises for the purpose of determining

whether:

(a) a provision that is subject to monitoring under this Part has



(3) However, the issuing officer must not issue the warrant unless the

authorised applicant or some other person has given to the issuing

officer, either orally or by affidavit, such further information (if

any) as the issuing officer requires concerning the grounds on

which the issue of the warrant is being sought.

Content of warrant

(4) The warrant must:

(a) describe the premises to which the warrant relates; and

(b) state that the warrant is issued under this section; and

(c) state the purpose for which the warrant is issued; and

(d) authorise one or more authorised persons (whether or not

named in the warrant) from time to time while the warrant

remains in force:

(i) to enter the premises; and

(ii) to exercise the powers set out in this Part in relation to

the premises; and


Monitoring Part 2

Monitoring warrants Division 5

Section 32


(e) state whether entry is authorised to be made at any time of

the day or during specified hours of the day; and

(f) specify the day (not more than 3 months after the issue of the

warrant) on which the warrant ceases to be in force.


Part 2 Monitoring

Division 6 Extension of periods in which things secured

Section 33


Division 6—Extension of periods in which things secured

33 Extension of periods in which things secured

Application

(1) This section applies where an authorised person applies to an

issuing officer under subsection 21(5) or 22(2) for an extension of

the period during which a thing may be secured.

Granting extension

(2) The issuing officer may, by order, grant an extension of the period

if the issuing officer is satisfied, by information on oath or

affirmation, that:

(a) where the thing is secured under section 21—it is necessary

to secure the thing to ensure that relevant data is not

destroyed, altered or otherwise interfered with; or

(b) where the thing is secured under section 22—it is necessary

to secure the thing in order to prevent it from being

concealed, lost or destroyed before a warrant to seize the

thing is obtained.

(3) However, the issuing officer must not grant the extension unless

the authorised person or some other person has given to the issuing



which the extension is being sought.

Content of order

(4) The order extending the period must:

(a) describe the thing to which the order relates; and

(b) state the period for which the extension is granted; and

(c) state that the order is made under this section; and

(d) state that the authorised person is authorised to secure the

thing for that period.


Monitoring Part 2

Powers of issuing officers Division 7

Section 34


Division 7—Powers of issuing officers

34 Powers of issuing officers

Powers conferred personally

(1) A power conferred on an issuing officer by this Part is conferred on

the issuing officer:

(a) in a personal capacity; and

(b) not as a court or a member of a court.

Powers need not be accepted

(2) The issuing officer need not accept the power conferred.

Protection and immunity

(3) An issuing officer exercising a power conferred by this Part has the

same protection and immunity as if the issuing officer were

exercising the power:

(a) as the court of which the issuing officer is a member; or

(b) as a member of the court of which the issuing officer is a

member.


Part 2 Monitoring

Division 8 Identity cards

Section 35


Division 8—Identity cards

35 Identity cards

(1) The relevant chief executive must issue an identity card to an

authorised person.

Form of identity card

(2) The identity card must:

(a) be in the form prescribed by the regulations; and

(b) contain a photograph that is no more than 1 year old of the

authorised person.

Offence


(a) the person has been issued with an identity card; and

(b) the person ceases to be an authorised person; and

(c) the person does not return the identity card to the relevant

chief executive within 14 days after ceasing to be an

authorised person.

Penalty: 1 penalty unit.

(4) An offence against subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Exception—card lost or destroyed

(5) Subsection (3) does not apply if the identity card was lost or

destroyed.

Note: A defendant bears an evidential burden in relation to the matter in this

subsection: see subsection 13.3(3) of the Criminal Code.

Authorised person must carry card

(6) An authorised person must carry his or her identity card at all times

when exercising powers under this Part as an authorised person.


Investigation Part 3


Section 36


Part 3—Investigation




This Part creates a framework for gathering material that relates to

the contravention of offence provisions and civil penalty

provisions.

For this Part to operate, an offence provision or a civil penalty

provision must be made subject to investigation under this Part.

This is to be done by another Act.

An authorised person may enter premises if the authorised person

suspects on reasonable grounds that there may be material on the

premises related to the contravention of an offence provision or a

civil penalty provision that is subject to investigation under this

Part.

Entry must be with the consent of the occupier of the premises or

under an investigation warrant.

An authorised person who enters premises may exercise

investigation powers. The authorised person may be assisted by

other persons if that assistance is necessary and reasonable and

another Act empowers the authorised person to do so.

An occupier’s consent to an authorised person entering premises

for the purposes of investigation must be voluntary. Authorised

persons must abide by the terms of that consent.

An authorised person who enters premises under an investigation

warrant must give details of the warrant to the occupier of the

premises.


Part 3 Investigation


Section 37


The occupier of the premises may observe the execution of an

investigation warrant and must provide reasonable facilities and

assistance for the effective execution of the warrant.


(1) The principal purpose of this Part is to create a framework for

gathering material that relates to the contravention of offence

provisions and civil penalty provisions.

(2) However, for this Part to operate, an offence provision or a civil

penalty provision must be made subject to investigation under this

Part.

38 Provisions subject to investigation

(1) An offence against an Act or a legislative instrument is subject to

investigation under this Part if an Act provides that the offence is

subject to investigation under this Part.

(2) A civil penalty provision under an Act or a legislative instrument is

subject to investigation under this Part if an Act provides that the

civil penalty provision is subject to investigation under this Part.

39 Evidential material

Evidential material means any of the following:

(a) a thing with respect to which an offence provision or a civil

penalty provision subject to investigation under this Part has

been contravened or is suspected, on reasonable grounds, to

have been contravened;

(b) a thing that there are reasonable grounds for suspecting will

afford evidence as to the contravention of such an offence

provision or a civil penalty provision;

(c) a thing that there are reasonable grounds for suspecting is

intended to be used for the purpose of contravening such an

offence provision or a civil penalty provision.




Section 40


40 Related provisions

A provision is related to evidential material if an Act provides that

the provision is related to the evidential material for the purposes

of this Part.



powers under this Part in relation to evidential material if an Act

provides that the person is an authorised applicant in relation to

evidential material for the purposes of this Part.








is an authorised applicant in relation to evidential material for the

purposes of this Part by:


applicant in relation to the evidential material for the




relation to the evidential material for the purposes of this

Part.



powers under this Part in relation to evidential material if an Act

provides that the person is an authorised person in relation to the

evidential material for the purposes of this Part.




Section 43









is an authorised person in relation to evidential material for the



person in relation to the evidential material for those

purposes; or



to the evidential material for those purposes.

43 Identity card

Identity card, in relation to a person who is an authorised person in

relation to evidential material for the purposes of this Part, means a

card issued to the person under section 76 by the relevant chief

executive in relation to that evidential material.

44 Issuing officer

(1) A judicial officer is an issuing officer for the purposes of

exercising powers under this Part in relation to evidential material,

if an Act provides that the judicial officer is an issuing officer in

relation to the evidential material for the purposes of this Part.

(2) A judicial officer who is an issuing officer for the purpose of

exercising powers mentioned in subsection (1) is also an issuing

officer for the purposes of exercising other powers under this Part


(3) Without limiting subsection (1), an Act may provide that a judicial

officer is an issuing officer in relation to evidential material for the





Section 45


(a) providing that a judicial officer of a specified class is an

issuing officer in relation to the evidential material for the


(b) authorising another person to specify that a judicial officer,

or a judicial officer of a specified class, is an issuing officer

in relation to the evidential material for the purposes of this

Part.



exercising powers under this Part in relation to evidential material,

if an Act provides that the person is the relevant chief executive in

relation to the evidential material for the purposes of this Part.








is the relevant chief executive in relation to evidential material for



relevant chief executive in relation to the evidential material

for those purposes; or



executive in relation to the evidential material for those

purposes.

46 Relevant court

A court is a relevant court in relation to a matter that arises

because of:

(a) the exercise of powers by a person under this Part in relation

to evidential material; or




Section 47


(b) the exercise of powers, or the performance of functions or

duties, under this Part that are incidental to the powers

mentioned in paragraph (a);

if an Act provides that the court is a relevant court in relation to

that evidential material for the purposes of this Part.

47 Privileges not abrogated

Self-incrimination



that the answer to the question, the information, or the production

of the document, might tend to incriminate him or her or make him

or her liable to a penalty.

Legal professional privilege



that:

(a) the answer to the question or the information would be

privileged from being given on the ground of legal

professional privilege; or

(b) the document would be privileged from being produced on

the ground of legal professional privilege.

Other legislation not affected

(3) The fact that this section is included in this Part does not imply that

the privilege against self-incrimination or legal professional

privilege is abrogated in any other Act.




Section 48


Division 2—Powers of authorised persons

Subdivision A—Investigation powers

48 Entering premises by consent or under a warrant

(1) If an authorised person suspects on reasonable grounds that there

may be evidential material on any premises, the authorised person

may:

(a) enter the premises; and

(b) exercise the investigation powers.

Note: The investigation powers are set out in sections 49, 50, 51 and 52.

(2) However, an authorised person is not authorised to enter the

premises unless:

(a) the occupier of the premises has consented to the entry; or

(b) the entry is made under an investigation warrant.

Note: If entry to the premises is with the occupier’s consent, the authorised

person must leave the premises if the consent ceases to have effect

(see section 55).

49 General investigation powers

The following are the investigation powers that an authorised

person may exercise in relation to premises under section 48:

(a) if entry to the premises is with the occupier’s consent—the

power to search the premises and any thing on the premises

for the evidential material the authorised person suspects on

reasonable grounds may be on the premises;

(b) if entry to the premises is under an investigation warrant:

(i) the power to search the premises and any thing on the

premises for the kind of evidential material specified in

the warrant; and

(ii) the power to seize evidential material of that kind if the

authorised person finds it on the premises;




Section 50


(c) the power to inspect, examine, take measurements of or

conduct tests on evidential material referred to in

paragraph (a) or (b);

(d) the power to make any still or moving image or any

recording of the premises or evidential material referred to in

paragraph (a) or (b);

(e) the power to take onto the premises such equipment and

materials as the authorised person requires for the purpose of

exercising powers in relation to the premises;

(f) the powers set out in subsections 50(1) and (2),

subsection 51(2) and section 52.

50 Operating electronic equipment

(1) The investigation powers include the power to:

(a) operate electronic equipment on the premises; and

(b) use a disk, tape or other storage device that:

(i) is on the premises; and

(ii) can be used with the equipment or is associated with it;

if an authorised person suspects on reasonable grounds that the

electronic equipment, disk, tape or other storage device is or

contains evidential material.

(2) The investigation powers include the following powers in relation

to evidential material found in the exercise of the power under

subsection (1):

(a) if entry to the premises is under an investigation warrant—

the power to seize the equipment and the disk, tape or other

storage device referred to in that subsection;

(b) the power to operate electronic equipment on the premises to

put the evidential material in documentary form and remove

the documents so produced from the premises;

(c) the power to operate electronic equipment on the premises to

transfer the evidential material to a disk, tape or other storage

device that:

(i) is brought to the premises for the exercise of the power;

or




Section 51


(ii) is on the premises and the use of which for that purpose

has been agreed in writing by the occupier of the

premises;

and remove the disk, tape or other storage device from the

premises.

(3) An authorised person may operate electronic equipment as

mentioned in subsection (1) or (2) only if the authorised person

believes on reasonable grounds that the operation of the equipment

can be carried out without damage to the equipment.


(4) An authorised person may seize equipment or a disk, tape or other

storage device as mentioned in paragraph (2)(a) only if:

(a) it is not practicable to put the evidential material in

documentary form as mentioned in paragraph (2)(b) or to

transfer the evidential material as mentioned in

paragraph (2)(c); or

(b) possession of the equipment or the disk, tape or other storage

device by the occupier could constitute an offence against a

law of the Commonwealth.

51 Securing electronic equipment to obtain expert assistance

(1) This section applies if an authorised person enters premises under

an investigation warrant to search for evidential material.

Securing equipment

(2) The investigation powers include the power to secure any

electronic equipment that is on the premises if the authorised

person suspects on reasonable grounds that:

(a) there is evidential material of the kind specified in the

warrant on the premises; and

(b) the evidential material may be accessible by operating the

electronic equipment; and

(c) expert assistance is required to operate the equipment; and




Section 51


(d) the evidential material may be destroyed, altered or otherwise

interfered with, if the authorised person does not take action

under this subsection.


any other means.

(3) The authorised person must give notice to the occupier of the

premises, or another person who apparently represents the

occupier, of:

(a) the authorised person’s intention to secure the equipment;

and

(b) the fact that the equipment may be secured for up to 24

hours.

Period equipment may be secured

(4) The equipment may be secured until the earlier of the following

happens:

(a) the 24-hour period ends;

(b) the equipment has been operated by the expert.


Extensions


extension of the 24-hour period, if the authorised person believes

on reasonable grounds that the equipment needs to be secured for

longer than that period.



apparently represents the occupier, of the authorised person’s

intention to apply for an extension. The occupier or other person is

entitled to be heard in relation to that application.



section 74.




Section 52


52 Seizing evidence of related provisions

(1) This section applies if an authorised person enters premises under

an investigation warrant to search for evidential material.

(2) The investigation powers include seizing a thing that is not

evidential material of the kind specified in the warrant if:

(a) in the course of searching for the kind of evidential material

specified in the warrant, the authorised person finds the

thing; and

(b) the authorised person believes on reasonable grounds that:

(i) the thing is evidential material of another kind; or

(ii) a related provision has been contravened with respect to

the thing; or

(iii) the thing is evidence of the contravention of a related

provision; or

(iv) the thing is intended to be used for the purpose of


(c) the authorised person believes on reasonable grounds that it

is necessary to seize the thing in order to prevent its

concealment, loss or destruction.

53 Persons assisting authorised persons

Authorised persons may be assisted by other persons

(1) An authorised person may be assisted by other persons in

exercising powers or performing functions or duties under this

Part, if:

(a) that assistance is necessary and reasonable; and

(b) another Act empowers the authorised person to be assisted.

A person giving such assistance is a person assisting the

authorised person.

Powers, functions and duties of a person assisting

(2) A person assisting the authorised person:

(a) may enter the premises; and




Section 54


(b) may exercise powers under this Part in relation to evidential

material; and

(c) may exercise powers and perform functions and duties under

this Part that are incidental to the powers mentioned in

paragraph (b); and

(d) must do so in accordance with a direction given to the person

assisting by the authorised person.

(3) A power exercised by a person assisting the authorised person as

mentioned in subsection (2) is taken for all purposes to have been

exercised by the authorised person.

(4) A function or duty performed by a person assisting the authorised

person as mentioned in subsection (2) is taken for all purposes to

have been performed by the authorised person.

(5) If a direction is given under paragraph (2)(d) in writing, the

direction is not a legislative instrument.


documents

54 Asking questions and seeking production of documents

Application

(1) This section applies if an authorised person enters premises to

search for evidential material.

Entry with consent

(2) If the entry is authorised because the occupier of the premises

consented to the entry, the authorised person may ask the occupier

to answer any questions, and produce any document, relating to

evidential material.

Entry under an investigation warrant

(3) If the entry is authorised by an investigation warrant, the

authorised person may require any person on the premises to




Section 54


answer any questions, and produce any document, relating to

evidential material of the kind specified in the warrant.

(4) A person is not subject to a requirement under subsection (3) if:

(a) the person does not possess the information or document

required; and

(b) the person has taken all reasonable steps available to the

person to obtain the information or document required and

has been unable to obtain it.

Offence


(a) the person is subject to a requirement under subsection (3);

and

(b) the person fails to comply with the requirement.





Section 55


Division 3—Obligations and incidental powers of

authorised persons

55 Consent

(1) Before obtaining the consent of an occupier of premises for the

purposes of paragraph 48(2)(a), an authorised person must inform

the occupier that the occupier may refuse consent.

(2) A consent has no effect unless the consent is voluntary.

(3) A consent may be expressed to be limited to entry during a

particular period. If so, the consent has effect for that period unless

the consent is withdrawn before the end of that period.

(4) A consent that is not limited as mentioned in subsection (3) has

effect until the consent is withdrawn.

(5) If an authorised person entered premises because of the consent of

the occupier of the premises, the authorised person, and any person

assisting the authorised person, must leave the premises if the

consent ceases to have effect.

(6) If:

(a) an authorised person enters premises because of the consent

of the occupier of the premises; and

(b) the authorised person has not shown the occupier his or her

identity card before entering the premises;

the authorised person must do so on, or as soon as is reasonably

practicable after, entering the premises.

56 Announcement before entry under warrant

(1) Before entering premises under an investigation warrant, an

authorised person must:

(a) announce that he or she is authorised to enter the premises;

and




Section 57


(b) show his or her identity card to the occupier of the premises,

or to another person who apparently represents the occupier,

if the occupier or other person is present at the premises; and

(c) give any person at the premises an opportunity to allow entry

to the premises.

(2) However, an authorised person is not required to comply with

subsection (1) if the authorised person believes on reasonable

grounds that immediate entry to the premises is required:

(a) to ensure the safety of a person; or

(b) to ensure that the effective execution of the warrant is not

frustrated.

(3) If:

(a) an authorised person does not comply with subsection (1)

because of subsection (2); and


apparently represents the occupier, is present at the premises;

the authorised person must, as soon as practicable after entering the

premises, show his or her identity card to the occupier or other

person.

57 Authorised person to be in possession of warrant

An authorised person executing an investigation warrant must be in

possession of:

(a) the warrant issued by the issuing officer under section 70, or

a copy of the warrant as so issued; or

(b) the form of warrant completed under subsection 71(6), or a

copy of the form as so completed.

58 Details of warrant etc. to be given to occupier

(1) An authorised person must comply with subsection (2) if:

(a) an investigation warrant is being executed in relation to

premises; and


apparently represents the occupier, is present at the premises.




Section 59


(2) The authorised person executing the warrant must, as soon as

practicable:

(a) do one of the following:

(i) if the warrant was issued under section 70—make a

copy of the warrant available to the occupier or other

person (which need not include the signature of the

issuing officer who issued it);

(ii) if the warrant was signed under section 71—make a

copy of the form of warrant completed under

subsection 71(6) available to the occupier or other

person; and

(b) inform the occupier or other person in writing of the rights

and responsibilities of the occupier or other person under

Division 4.

59 Completing execution after temporary cessation

(1) This section applies if an authorised person, and all persons

assisting, who are executing an investigation warrant in relation to

premises temporarily cease its execution and leave the premises.

(2) The authorised person, and persons assisting, may complete the

execution of the warrant if:

(a) the warrant is still in force; and

(b) the authorised person and persons assisting are absent from

the premises:

(i) for not more than 1 hour; or

(ii) if there is an emergency situation, for not more than 12

hours or such longer period as allowed by an issuing

officer under subsection (5); or

(iii) for a longer period if the occupier of the premises

consents in writing.

Application for extension in emergency situation

(3) An authorised person, or person assisting, may apply to an issuing

officer for an extension of the 12-hour period mentioned in

subparagraph (2)(b)(ii) if:

(a) there is an emergency situation; and




Section 60


(b) the authorised person or person assisting believes on

reasonable grounds that the authorised person and the

persons assisting will not be able to return to the premises

within that period.

(4) If it is practicable to do so, before making the application, the

authorised person or person assisting must give notice to the

occupier of the premises of his or her intention to apply for an

extension.

Extension in emergency situation

(5) An issuing officer may extend the period during which the

authorised person and persons assisting may be away from the

premises if:

(a) an application is made under subsection (3); and

(b) the issuing officer is satisfied, by information on oath or

affirmation, that there are exceptional circumstances that

justify the extension; and

(c) the extension would not result in the period ending after the

warrant ceases to be in force.

60 Completing execution of warrant stopped by court order

An authorised person, and any persons assisting, may complete the

execution of a warrant that has been stopped by an order of a court

if:

(a) the order is later revoked or reversed on appeal; and

(b) the warrant is still in force when the order is revoked or

reversed.

61 Compensation for damage to electronic equipment


(a) as a result of electronic equipment being operated as

mentioned in this Part:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or




Section 61


(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in a relevant

court for such reasonable amount of compensation as the court

determines.

(4) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises, or the occupier’s

employees or agents, if they were available at the time, provided

any appropriate warning or guidance on the operation of the

equipment.



Occupier’s rights and responsibilities Division 4

Section 62


Division 4—Occupier’s rights and responsibilities

62 Right to observe execution of warrant

(1) The occupier of premises to which an investigation warrant relates,

or another person who apparently represents the occupier, is

entitled to observe the execution of the investigation warrant if the

occupier or other person is present at the premises while the

warrant is being executed.

(2) The right to observe the execution of the warrant ceases if the

occupier or other person impedes that execution.

(3) This section does not prevent the execution of the warrant in 2 or

more areas of the premises at the same time.

63 Responsibility to provide facilities and assistance

(1) The occupier of premises to which an investigation warrant relates,

or another person who apparently represents the occupier, must

provide:

(a) an authorised person executing the warrant; and

(b) any person assisting the authorised person;

with all reasonable facilities and assistance for the effective

exercise of their powers.


(a) the person is subject to subsection (1); and

(b) the person fails to comply with that subsection.




Division 5 General provisions relating to seizure

Section 64


Division 5—General provisions relating to seizure

64 Copies of seized things to be provided


(a) an investigation warrant is being executed in relation to

premises; and

(b) an authorised person seizes one or more of the following

from the premises under this Part:

(i) a document, film, computer file or other thing that can

be readily copied;

(ii) a storage device, the information in which can be

readily copied.

(2) The occupier of the premises, or another person who apparently

represents the occupier and who is present when the warrant is

executed, may request the authorised person to give a copy of the

thing or the information to the occupier or other person.

(3) The authorised person must comply with the request as soon as

practicable after the seizure.

(4) However, the authorised person is not required to comply with the

request if possession of the document, film, computer file, thing or

information by the occupier or other person could constitute an

offence against a law of the Commonwealth.

65 Receipts for seized things

(1) The authorised person must provide a receipt for a thing that is

seized under this Part.

(2) One receipt may cover 2 or more things seized.

66 Return of seized things

(1) The relevant chief executive must take reasonable steps to return a

thing seized under this Part when the earliest of the following

happens:



General provisions relating to seizure Division 5

Section 67


(a) the reason for the thing’s seizure no longer exists;

(b) it is decided that the thing is not to be used in evidence;

(c) the period of 60 days after the thing’s seizure ends.

Note: For exceptions to this rule, see subsections (2) and (3).

Exceptions

(2) Subsection (1):

(a) is subject to any contrary order of a court; and

(b) does not apply if the thing:

(i) is forfeited or forfeitable to the Commonwealth; or

(ii) is the subject of a dispute as to ownership.

(3) The relevant chief executive is not required to take reasonable

steps to return a thing because of paragraph (1)(c) if:

(a) proceedings in respect of which the thing may afford

evidence were instituted before the end of the 60 days and

those proceedings (and any appeal from those proceedings)

have not been completed; or

(b) the thing may continue to be retained because of an order

under section 67; or

(c) the Commonwealth or the relevant chief executive is

otherwise authorised (by a law, or an order of a court, of the

Commonwealth or of a State or Territory) to retain, destroy,

dispose of or otherwise deal with the thing.

Return of thing

(4) A thing that is required to be returned under this section must be

returned to the person from whom it was seized (or to the owner if

that person is not entitled to possess it).

67 Issuing officer may permit a thing to be retained

(1) The relevant chief executive may apply to an issuing officer for an

order permitting the retention of a thing seized under this Part for a

further period if proceedings in respect of which the thing may

afford evidence have not commenced before the end of:

(a) 60 days after the seizure; or



Division 5 General provisions relating to seizure

Section 68


(b) a period previously specified in an order of an issuing officer

under this section.

(2) Before making the application, the relevant chief executive must:

(a) take reasonable steps to discover who has an interest in the

retention of the thing; and

(b) if it is practicable to do so, notify each person whom the

relevant chief executive believes to have such an interest of

the proposed application.

(3) Any person notified under paragraph (2)(b) is entitled to be heard

in relation to the application.

Order to retain thing

(4) The issuing officer may order that the thing may continue to be

retained for a period specified in the order if the issuing officer is

satisfied that it is necessary for the thing to continue to be retained:

(a) for the purposes of an investigation as to whether an offence

provision or a civil penalty provision that is subject to

investigation under this Part has been contravened; or

(b) for the purposes of an investigation as to whether a related

provision has been contravened; or

(c) to enable evidence of a contravention mentioned in

paragraph (a) or (b) to be secured for the purposes of a

prosecution or an action to obtain a civil penalty order.

(5) The period specified must not exceed 3 years.

68 Disposal of things

(1) The relevant chief executive may dispose of a thing seized under

this Part if:

(a) the relevant chief executive has taken reasonable steps to

return the thing to a person; and

(b) either:

(i) the relevant chief executive has been unable to locate

the person; or

(ii) the person has refused to take possession of the thing.



General provisions relating to seizure Division 5

Section 69


(2) The relevant chief executive may dispose of the thing in such

manner as the relevant chief executive thinks appropriate.

69 Compensation for acquisition of property

(1) If the operation of section 68 would result in an acquisition of

property from a person otherwise than on just terms, the

Commonwealth is liable to pay a reasonable amount of

compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in a

relevant court for the recovery from the Commonwealth of such

reasonable amount of compensation as the court determines.

(3) In this section:

acquisition of property has the same meaning as in

paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.



Division 6 Investigation warrants

Section 70


Division 6—Investigation warrants

70 Investigation warrants


(1) An authorised applicant may apply to an issuing officer for a

warrant under this section in relation to premises.

Issue of warrant

(2) The issuing officer may issue the warrant if the issuing officer is

satisfied, by information on oath or affirmation, that there are

reasonable grounds for suspecting that there is, or there may be

within the next 72 hours, evidential material on the premises.

(3) However, the issuing officer must not issue the warrant unless the

authorised applicant or some other person has given to the issuing



which the issue of the warrant is being sought.

Content of warrant

(4) The warrant must:

(a) state the offence provision or offence provisions, or civil

penalty provision or civil penalty provisions, to which the

warrant relates; and

(b) describe the premises to which the warrant relates; and

(c) state that the warrant is issued under this Division; and

(d) specify the kinds of evidential material to be searched for

under the warrant; and

(e) state that evidential material of the kind specified may be

seized under the warrant; and

(f) state that the person executing the warrant may seize any

other thing found in the course of executing the warrant if the

person believes on reasonable grounds that:



Investigation warrants Division 6

Section 71


(i) the thing is evidential material of a kind not specified in

the warrant; or

(ii) a related provision has been contravened with respect to

the thing; or

(iii) the thing is evidence of the contravention of a related

provision; or

(iv) the thing is intended to be used for the purpose of


(g) name one or more authorised persons; and

(h) authorise the authorised persons named in the warrant:

(i) to enter the premises; and

(ii) to exercise the powers set out in this Part in relation to

the premises; and

(i) state whether entry is authorised to be made at any time of

the day or during specified hours of the day; and

(j) specify the day (not more than 1 week after the issue of the

warrant) on which the warrant ceases to be in force.

71 Investigation warrants by telephone, fax etc.


(1) An authorised applicant may apply to an issuing officer by

telephone, fax or other electronic means for a warrant under

section 70 in relation to premises:

(a) in an urgent case; or

(b) if the delay that would occur if an application were made in

person would frustrate the effective execution of the warrant.

(2) The issuing officer:

(a) may require communication by voice to the extent that it is

practicable in the circumstances; and

(b) may make a recording of the whole or any part of any such

communication by voice.

(3) Before applying for the warrant, the authorised applicant must

prepare an information of the kind mentioned in subsection 70(2)

in relation to the premises that sets out the grounds on which the




Section 71


warrant is sought. If it is necessary to do so, the authorised

applicant may apply for the warrant before the information is

sworn or affirmed.

Issuing officer may complete and sign warrant

(4) The issuing officer may complete and sign the same warrant that

would have been issued under section 70 if, after considering the

terms of the information and receiving such further information (if

any) that the issuing officer requires, the issuing officer is satisfied

that:

(a) the warrant should be issued urgently; or

(b) the delay that would occur if an application were made in

person would frustrate the effective execution of the warrant.

(5) After completing and signing the warrant, the issuing officer must

inform the authorised applicant, by telephone, fax or other

electronic means, of:

(a) the terms of the warrant; and

(b) the day on which, and the time at which, the warrant was

signed.

Obligations on authorised applicant

(6) The authorised applicant must then do the following:

(a) complete a form of warrant in the same terms as the warrant

completed and signed by the issuing officer;

(b) state on the form the following:

(i) the name of the issuing officer;

(ii) the day on which, and the time at which, the warrant

was signed;

(c) send the following to the issuing officer:

(i) the form of warrant completed by the authorised

applicant;

(ii) the information referred to in subsection (3), which

must have been duly sworn or affirmed.

(7) The authorised applicant must comply with paragraph (6)(c) by the

end of the day after the earlier of the following:



Investigation warrants Division 6

Section 72


(a) the day on which the warrant ceases to be in force;

(b) the day on which the warrant is executed.

Issuing officer to attach documents together

(8) The issuing officer must attach the documents provided under

paragraph (6)(c) to the warrant signed by the issuing officer.

72 Authority of warrant

(1) A form of warrant duly completed under subsection 71(6) is

authority for the same powers as are authorised by the warrant

signed by the issuing officer under subsection 71(4).

(2) In any proceedings, a court is to assume (unless the contrary is

proved) that an exercise of power was not authorised by a warrant

under section 71 if:

(a) it is material, in those proceedings, for the court to be

satisfied that the exercise of power was authorised by that

section; and

(b) the warrant signed by the issuing officer authorising the

exercise of the power is not produced in evidence.

73 Offence relating to warrants by telephone, fax etc.

An authorised applicant must not:

(a) state in a document that purports to be a form of warrant

under section 71 the name of an issuing officer unless that

issuing officer signed the warrant; or

(b) state on a form of warrant under that section a matter that, to

the authorised applicant’s knowledge, departs in a material

particular from the terms of the warrant signed by the issuing

officer under that section; or

(c) purport to execute, or present to another person, a document

that purports to be a form of warrant under that section that

the authorised applicant knows departs in a material

particular from the terms of a warrant signed by an issuing

officer under that section; or




Section 73


(d) purport to execute, or present to another person, a document

that purports to be a form of warrant under that section where

the authorised applicant knows that no warrant in the terms

of the form of warrant has been completed and signed by an

issuing officer; or

(e) give to an issuing officer a form of warrant under that section

that is not the form of warrant that the authorised applicant

purported to execute.

Penalty: Imprisonment for 2 years.



Extension of periods in which things secured Division 7

Section 74


Division 7—Extension of periods in which things secured

74 Extension of periods in which things secured

Application

(1) This section applies where an authorised person applies to an

issuing officer under subsection 51(5) for an extension of the

period during which a thing may be secured.

Granting extension

(2) The issuing officer may, by order, grant an extension of the period

if the issuing officer is satisfied, by information on oath or

affirmation, that it is necessary to secure the thing in order to

prevent evidential material from being destroyed, altered or

otherwise interfered with.

(3) However, the issuing officer must not grant the extension unless

the authorised person or some other person has given to the issuing



which the extension is being sought.

Content of order

(4) The order extending the period must:

(a) describe the thing to which the order relates; and

(b) state the period for which the extension is granted; and

(c) state that the order is made under this section; and

(d) state that the authorised person is authorised to secure the

thing for that period.



Division 8 Powers of issuing officers

Section 75


Division 8—Powers of issuing officers

75 Powers of issuing officers

Powers conferred personally

(1) A power conferred on an issuing officer by this Part is conferred on

the issuing officer:

(a) in a personal capacity; and

(b) not as a court or a member of a court.

Powers need not be accepted

(2) The issuing officer need not accept the power conferred.

Protection and immunity

(3) An issuing officer exercising a power conferred by this Part has the

same protection and immunity as if the issuing officer were

exercising the power:

(a) as the court of which the issuing officer is a member; or

(b) as a member of the court of which the issuing officer is a

member.



Identity cards Division 9

Section 76


Division 9—Identity cards

76 Identity cards

(1) The relevant chief executive must issue an identity card to an

authorised person.

Form of identity card

(2) The identity card must:

(a) be in the form prescribed by the regulations; and

(b) contain a photograph that is no more than 1 year old of the

authorised person.

Offence


(a) the person has been issued with an identity card; and

(b) the person ceases to be an authorised person; and

(c) the person does not return the identity card to the relevant

chief executive within 14 days after ceasing to be an

authorised person.

Penalty: 1 penalty unit.

(4) An offence against subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Exception—card lost or destroyed

(5) Subsection (3) does not apply if the identity card was lost or

destroyed.

Note: A defendant bears an evidential burden in relation to the matter in this

subsection: see subsection 13.3(3) of the Criminal Code.

Authorised person must carry card

(6) An authorised person must carry his or her identity card at all times

when exercising powers under this Part as an authorised person.


Part 4 Civil penalty provisions


Section 77


Part 4—Civil penalty provisions




This Part creates a framework for the use of civil penalties to

enforce civil penalty provisions.

For this Part to operate for the purposes of that framework, a civil

penalty provision must be made enforceable under this Part. This is

done by another Act.

Civil penalty orders may be sought from a court in relation to

contraventions of civil penalty provisions.

This Part also contains some rules of general application in relation

to civil penalty provisions (such as the state of mind that must be

proved and the defence of mistake of fact).

78 Purposes and operation of this Part

(1) The principal purposes of this Part are to create a framework for

the use of civil penalties to enforce civil penalty provisions.

(2) However, for this Part to operate, a civil penalty provision must be

made enforceable under this Part.

79 Enforceable civil penalty provisions

(1) A provision is enforceable under this Part if:

(a) it is a civil penalty provision, as defined in subsection (2);

and

(b) an Act provides that the civil penalty provision is enforceable

under this Part.


Civil penalty provisions Part 4


Section 80


(2) A provision of an Act or a legislative instrument is a civil penalty

provision if:

(a) either:

(i) the provision sets out at its foot a pecuniary penalty, or

penalties, indicated by the words “Civil penalty”; or

(ii) another provision of an Act or a legislative instrument

provides that the provision is a civil penalty provision,

or that a person is liable to a civil penalty if the person

contravenes the provision; and

(b) the provision is:

(i) a subsection, or a section that is not divided into

subsections; or

(ii) a subregulation, or a regulation that is not divided into

subregulations; or

(iii) a subclause (however described) of a Schedule to an Act

or of a legislative instrument; or

(iv) a clause (however described) of a Schedule to an Act, or

of a legislative instrument, that is not divided into

subclauses.



powers under this Part in relation to the contravention of a civil

penalty provision if an Act provides that the person is an

authorised applicant in relation to the civil penalty provision for the

purposes of this Part.








is an authorised applicant in relation to a civil penalty provision for





Section 81



applicant in relation to the civil penalty provision for those

purposes; or



relation to the civil penalty provision for those purposes.

81 Relevant court

A court is a relevant court for the purposes of exercising powers

under this Part in relation to the contravention of a civil penalty

provision, if an Act provides that the court is a relevant court in

relation to the civil penalty provision for the purposes of this Part.



Obtaining a civil penalty order Division 2

Section 82


Division 2—Obtaining a civil penalty order

82 Civil penalty orders

Application for order

(1) An authorised applicant may apply to a relevant court for an order

that a person, who is alleged to have contravened a civil penalty

provision, pay the Commonwealth a pecuniary penalty.

(2) The authorised applicant must make the application within 4 years

of the alleged contravention.

Court may order person to pay pecuniary penalty

(3) If the relevant court is satisfied that the person has contravened the

civil penalty provision, the court may order the person to pay to the

Commonwealth such pecuniary penalty for the contravention as the

court determines to be appropriate.

Note: Subsection (5) sets out the maximum penalty that the court may order

the person to pay.

(4) An order under subsection (3) is a civil penalty order.

Determining pecuniary penalty

(5) The pecuniary penalty must not be more than:

(a) if the person is a body corporate—5 times the pecuniary

penalty specified for the civil penalty provision; and

(b) otherwise—the pecuniary penalty specified for the civil

penalty provision.

(6) In determining the pecuniary penalty, the court must take into

account all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered because

of the contravention; and

(c) the circumstances in which the contravention took place; and



Division 2 Obtaining a civil penalty order

Section 83


(d) whether the person has previously been found by a court

(including a court in a foreign country) to have engaged in

any similar conduct.

83 Civil enforcement of penalty

(1) A pecuniary penalty is a debt payable to the Commonwealth.

(2) The Commonwealth may enforce a civil penalty order as if it were

an order made in civil proceedings against the person to recover a

debt due by the person. The debt arising from the order is taken to

be a judgement debt.

84 Conduct contravening more than one civil penalty provision

(1) If conduct constitutes a contravention of 2 or more civil penalty

provisions, proceedings may be instituted under this Part against a

person in relation to the contravention of any one or more of those

provisions.

(2) However, the person is not liable to more than one pecuniary

penalty under this Part in relation to the same conduct.

85 Multiple contraventions

(1) A relevant court may make a single civil penalty order against a

person for multiple contraventions of a civil penalty provision if

proceedings for the contraventions are founded on the same facts,

or if the contraventions form, or are part of, a series of

contraventions of the same or a similar character.

Note: For continuing contraventions of civil penalty provisions, see

section 93.

(2) However, the penalty must not exceed the sum of the maximum

penalties that could be ordered if a separate penalty were ordered

for each of the contraventions.

86 Proceedings may be heard together

A relevant court may direct that 2 or more proceedings for civil

penalty orders are to be heard together.



Obtaining a civil penalty order Division 2

Section 87


87 Civil evidence and procedure rules for civil penalty orders

A relevant court must apply the rules of evidence and procedure

for civil matters when hearing proceedings for a civil penalty

order.



Division 3 Civil proceedings and criminal proceedings

Section 88


Division 3—Civil proceedings and criminal proceedings

88 Civil proceedings after criminal proceedings

A relevant court may not make a civil penalty order against a

person for a contravention of a civil penalty provision if the person

has been convicted of an offence constituted by conduct that is the

same, or substantially the same, as the conduct constituting the

contravention.

89 Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision are stayed if:

(a) criminal proceedings are commenced or have already been

commenced against the person for an offence; and

(b) the offence is constituted by conduct that is the same, or

substantially the same, as the conduct alleged to constitute

the contravention.

(2) The proceedings for the order (the civil proceedings) may be

resumed if the person is not convicted of the offence. Otherwise:

(a) the civil proceedings are dismissed; and

(b) costs must not be awarded in relation to the civil proceedings.

90 Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for

conduct that is the same, or substantially the same, as conduct that

would constitute a contravention of a civil penalty provision

regardless of whether a civil penalty order has been made against

the person in relation to the contravention.



Civil proceedings and criminal proceedings Division 3

Section 91


91 Evidence given in civil proceedings not admissible in criminal

proceedings

(1) Evidence of information given, or evidence of production of

documents, by an individual is not admissible in criminal

proceedings against the individual if:

(a) the individual previously gave the information or produced

the documents in proceedings for a civil penalty order against

the individual for an alleged contravention of a civil penalty

provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is the same, or

substantially the same, as the conduct alleged to constitute

the contravention.

(2) However, subsection (1) does not apply to criminal proceedings in

relation to the falsity of the evidence given by the individual in the

proceedings for the civil penalty order.



Division 4 Miscellaneous

Section 92


Division 4—Miscellaneous

92 Ancillary contravention of civil penalty provisions

(1) A person must not:

(a) attempt to contravene a civil penalty provision; or

(b) aid, abet, counsel or procure a contravention of a civil

penalty provision; or

(c) induce (by threats, promises or otherwise) a contravention of

a civil penalty provision; or

(d) be in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention of a civil penalty provision; or

(e) conspire with others to effect a contravention of a civil

penalty provision.

Civil penalty

(2) A person who contravenes subsection (1) in relation to a civil

penalty provision is taken to have contravened the provision.

Note: Section 94 (which provides that a person’s state of mind does not need

to be proven in relation to a civil penalty provision) does not apply to

the extent that proceedings relate to the contravention of

subsection (1).

93 Continuing contraventions of civil penalty provisions

(1) If an act or thing is required under a civil penalty provision to be

done:

(a) within a particular period; or

(b) before a particular time;

then the obligation to do that act or thing continues until the act or

thing is done (even if the period has expired or the time has

passed).

(2) A person who contravenes a civil penalty provision that requires an

act or thing to be done:

(a) within a particular period; or

(b) before a particular time;



Miscellaneous Division 4

Section 94


commits a separate contravention of that provision in respect of

each day during which the contravention occurs (including the day

the relevant civil penalty order is made or any later day).

94 State of mind

(1) In proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision, it is not necessary to

prove:

(a) the person’s intention; or

(b) the person’s knowledge; or

(c) the person’s recklessness; or

(d) the person’s negligence; or

(e) any other state of mind of the person.

(2) Subsection (1) does not apply to the extent that the proceedings

relate to a contravention of subsection 92(1) (which is about

ancillary contravention of civil penalty provisions).

(3) Subsection (1) does not affect the operation of section 95 (which is

about mistake of fact).

(4) Subsection (1) does not apply to the extent that the civil penalty

provision, or a provision that relates to the civil penalty provision,

expressly provides otherwise.

95 Mistake of fact

(1) A person is not liable to have a civil penalty order made against the

person for a contravention of a civil penalty provision if:

(a) at or before the time of the conduct constituting the

contravention, the person:

(i) considered whether or not facts existed; and

(ii) was under a mistaken but reasonable belief about those

facts; and

(b) had those facts existed, the conduct would not have

constituted a contravention of the civil penalty provision.



Division 4 Miscellaneous

Section 96


(2) For the purposes of subsection (1), a person may be regarded as

having considered whether or not facts existed if:

(a) the person had considered, on a previous occasion, whether

those facts existed in the circumstances surrounding that

occasion; and

(b) the person honestly and reasonably believed that the

circumstances surrounding the present occasion were the

same, or substantially the same, as those surrounding the

previous occasion.

(3) A person who wishes to rely on subsection (1) or (2) in

proceedings for a civil penalty order bears an evidential burden in

relation to that matter.

96 Exceptions etc. to civil penalty provisions—burden of proof

If, in proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision, the person wishes to rely

on any exception, exemption, excuse, qualification or justification

provided by the law creating the civil penalty provision, then the

person bears an evidential burden in relation to that matter.

97 Civil penalty provisions contravened by employees, agents or

officers

If an element of a civil penalty provision is done by an employee,

agent or officer of a body corporate acting within the actual or

apparent scope of his or her employment, or within his or her

actual or apparent authority, the element must also be attributed to

the body corporate.


Infringement notices Part 5


Section 98


Part 5—Infringement notices




This Part creates a framework for the use of infringement notices

where an infringement officer reasonably believes that a provision

has been contravened.

For this Part to operate, a provision must be made subject to an

infringement notice under this Part. This is to be done by another

Act.

A person can be given an infringement notice in relation to a

contravention of a provision that is subject to an infringement

notice under this Part. The provision may be a strict liability

offence or a civil penalty provision, or both.

A person who is given an infringement notice can choose to pay an

amount as an alternative to having court proceedings brought

against the person for a contravention of a provision subject to an

infringement notice under this Part. If the person does not choose

to pay the amount, proceedings can be brought against the person

in relation to the contravention.


(1) The principal purpose of this Part is to create a framework for the

use of infringement notices where an infringement officer

reasonably believes that a provision has been contravened.

(2) However, for this Part to operate, a provision of an Act or a

legislative instrument must be made subject to an infringement

notice under this Part.


Part 5 Infringement notices


Section 100


100 Provisions subject to infringement notices

A provision that is an offence of strict liability or a civil penalty

provision in an Act or a legislative instrument is subject to an

infringement notice under this Part if an Act provides that the

provision is subject to an infringement notice under this Part.

101 Infringement officer

(1) A person is an infringement officer for the purposes of exercising

powers under this Part in relation to a contravention of a provision

if an Act provides that the person is an infringement officer in

relation to that provision for the purposes of this Part.

(2) A person who is an infringement officer for the purpose of


infringement officer for the purposes of:





is an infringement officer in relation to a provision for the purposes

of this Part by:

(a) providing that a person of a specified class is an infringement

officer in relation to the provision for the purposes of this

Part; or


person of a specified class, is an infringement officer in

relation to the provision for the purposes of this Part.



exercising powers under this Part in relation to a contravention of a

provision if an Act provides that the person is the relevant chief

executive in relation to that provision for the purposes of this Part.




Section 102









is the relevant chief executive in relation to a provision for the



relevant chief executive in relation to the provision for the




executive in relation to the provision for the purposes of this

Part.



Division 2 Infringement notices

Section 103


Division 2—Infringement notices

103 When an infringement notice may be given

(1) If an infringement officer believes on reasonable grounds that a

person has contravened a provision subject to an infringement

notice under this Part, the infringement officer may give to the

person an infringement notice for the alleged contravention.

(2) The infringement notice must be given within 12 months after the

day on which the contravention is alleged to have taken place.

(3) A single infringement notice must relate only to a single

contravention of a single provision unless subsection (4) applies.

(4) An infringement officer may give a person a single infringement

notice relating to multiple contraventions of a single provision if:

(a) the provision requires the person to do a thing within a

particular period or before a particular time; and

(b) the person fails or refuses to do that thing within that period

or before that time; and

(c) the failure or refusal occurs on more than 1 day; and

(d) each contravention is constituted by the failure or refusal on

one of those days.

Note: For continuing offences, see subsection 4K(2) of the Crimes Act 1914.

For continuing contraventions of civil penalty provisions, see

section 93 of this Act.

(5) If a single provision can constitute both a civil penalty provision

and an offence provision, the infringement notice must relate to the

provision as an offence provision.

104 Matters to be included in an infringement notice

(1) An infringement notice must:

(a) be identified by a unique number; and

(b) state the day on which it is given; and

(c) state the name of the person to whom the notice is given; and



Infringement notices Division 2

Section 104


(d) state the name and contact details of the person who gave the

notice, and that the person is an infringement officer for the

purposes of issuing the infringement notice; and

(e) give brief details of the alleged contravention, including:

(i) the provision that was allegedly contravened; and

(ii) the maximum penalty that a court could impose if the

provision were contravened; and

(iii) the time (if known) and day of, and the place of, the

alleged contravention; and

(f) state the amount that is payable under the notice; and

(g) give an explanation of how payment of the amount is to be

made; and

(h) state that, if the person to whom the notice is given pays the

amount within 28 days after the day the notice is given, then

(unless the notice is withdrawn):

(i) if the provision is an offence provision and does not also

constitute a civil penalty provision—the person will not

be liable to be prosecuted in a court for the alleged

contravention; or

(ii) if the provision is an offence provision that can also

constitute a civil penalty provision—the person is not

liable to be prosecuted in a court, and proceedings

seeking a civil penalty order will not be brought, in

relation to the alleged contravention; or

(iii) if the provision is a civil penalty provision—

proceedings seeking a civil penalty order will not be

brought in relation to the alleged contravention; and

(i) state that payment of the amount is not an admission of guilt

or liability; and

(j) state that the person may apply to the relevant chief executive

to have the period in which to pay the amount extended; and

(k) state that the person may choose not to pay the amount and, if

the person does so:


constitute a civil penalty provision—the person may be

prosecuted in a court for the alleged contravention; or




Section 105


(ii) if the provision is an offence provision and can also


prosecuted in a court, or proceedings seeking a civil

penalty order may be brought, in relation to the alleged

contravention; or


proceedings seeking a civil penalty order may be


(l) set out how the notice can be withdrawn; and

(m) state that if the notice is withdrawn:








contravention; or




(n) state that the person may make written representations to the

relevant chief executive seeking the withdrawal of the notice.

(2) Unless another Act expressly provides otherwise, the amount to be

stated in the notice for the purposes of paragraph (1)(f) for the

alleged contravention of the provision by the person must be the

lesser of:

(a) one-fifth of the maximum penalty that a court could impose

on the person for that contravention; and

(b) 12 penalty units where the person is an individual, or 60

penalty units where the person is a body corporate.

105 Extension of time to pay amount

(1) A person to whom an infringement notice has been given may

apply to the relevant chief executive for an extension of the period

referred to in paragraph 104(1)(h).




Section 106


(2) If the application is made before the end of that period, the relevant

chief executive may, in writing, extend that period. The relevant

chief executive may do so before or after the end of that period.

(3) If the relevant chief executive extends that period, a reference in

this Part, or in a notice or other instrument under this Part, to the

period referred to in paragraph 104(1)(h) is taken to be a reference

to that period so extended.

(4) If the relevant chief executive does not extend that period, a

reference in this Part, or in a notice or other instrument under this

Part, to the period referred to in paragraph 104(1)(h) is taken to be

a reference to the period that ends on the later of the following

days:

(a) the day that is the last day of the period referred to in

paragraph 104(1)(h);

(b) the day that is 7 days after the day the person was given

notice of the relevant chief executive’s decision not to

extend.

(5) The relevant chief executive may extend the period more than once

under subsection (2).

106 Withdrawal of an infringement notice

Representations seeking withdrawal of notice

(1) A person to whom an infringement notice has been given may

make written representations to the relevant chief executive

seeking the withdrawal of the notice.

Withdrawal of notice

(2) The relevant chief executive may withdraw an infringement notice

given to a person (whether or not the person has made written

representations seeking the withdrawal).

(3) When deciding whether or not to withdraw an infringement notice

(the relevant infringement notice), the relevant chief executive:




Section 106


(a) must take into account any written representations seeking

the withdrawal that were given by the person to the relevant

chief executive; and

(b) may take into account the following:

(i) whether a court has previously imposed a penalty on the

person for a contravention of a provision subject to an

infringement notice under this Part that is included in

the same Act or legislative instrument as the provision

in relation to which the infringement notice is given;

(ii) the circumstances of the alleged contravention;

(iii) whether the person has paid an amount, stated in an

earlier infringement notice, for a contravention of a

provision subject to an infringement notice under this

Part if the contravention is constituted by conduct that is

the same, or substantially the same, as the conduct

alleged to constitute the contravention in the relevant

infringement notice;

(iv) any other matter the relevant chief executive considers

relevant.

Notice of withdrawal

(4) Notice of the withdrawal of the infringement notice must be given

to the person. The withdrawal notice must state:

(a) the person’s name and address; and

(b) the day the infringement notice was given; and

(c) the identifying number of the infringement notice; and

(d) that the infringement notice is withdrawn; and

(e) that:








contravention; or




Section 107




brought in relation to the alleged contravention.

Refund of amount if infringement notice withdrawn

(5) If:

(a) the relevant chief executive withdraws the infringement

notice; and

(b) the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to

the amount paid.

107 Effect of payment of amount

(1) If the person to whom an infringement notice for an alleged

contravention of a provision is given pays the amount stated in the

notice before the end of the period referred to in

paragraph 104(1)(h):

(a) any liability of the person for the alleged contravention is

discharged; and

(b) if the provision is an offence provision and does not also

constitute a civil penalty provision—the person may not be

prosecuted in a court for the alleged contravention; and

(c) if the provision is an offence provision and can also

constitute a civil penalty provision—the person may not be

prosecuted in a court, and proceedings seeking a civil penalty

order may not be brought, in relation to the alleged

contravention; and

(d) if the provision is a civil penalty provision—proceedings

seeking a civil penalty order may not be brought in relation to

the alleged contravention; and

(e) the person is not regarded as having admitted guilt or liability

for the alleged contravention; and

(f) if the provision is an offence provision—the person is not

regarded as having been convicted of the alleged offence.

(2) Subsection (1) does not apply if the notice has been withdrawn.




Section 108


108 Effect of this Part

This Part does not:

(a) require an infringement notice to be given to a person for an

alleged contravention of a provision subject to an

infringement notice under this Part; or

(b) affect the liability of a person for an alleged contravention of

a provision subject to an infringement notice under this Part

if:

(i) the person does not comply with an infringement notice

given to the person for the contravention; or

(ii) an infringement notice is not given to the person for the

contravention; or

(iii) an infringement notice is given to the person for the

contravention and is subsequently withdrawn; or

(c) prevent the giving of 2 or more infringement notices to a

person for an alleged contravention of a provision subject to

an infringement notice under this Part; or

(d) limit a court’s discretion to determine the amount of a

penalty to be imposed on a person who is found to have

contravened a provision subject to an infringement notice

under this Part.


Enforceable undertakings Part 6


Section 109


Part 6—Enforceable undertakings




This Part creates a framework for accepting and enforcing

undertakings relating to compliance with provisions.

For this Part to operate, a provision must be made enforceable

under this Part. This is to be done by another Act.

An authorised person may accept an undertaking relating to

compliance with a provision that is enforceable under this Part.

The undertaking may be enforced in a relevant court.

The orders that may be made by a relevant court include an order

directing compliance, an order requiring any financial benefit from

the failure to comply to be surrendered and an order for damages.



acceptance and enforcement of undertakings relating to compliance

with provisions.


legislative instrument must be made enforceable under this Part.

111 Enforceable provisions

A provision of an Act or a legislative instrument is enforceable

under this Part if an Act provides that the provision is enforceable

under this Part.


Part 6 Enforceable undertakings


Section 112




powers under this Part in relation to a provision if an Act provides

that the person is an authorised person in relation to that provision

for the purposes of this Part.








is an authorised person in relation to a provision for the purposes of

this Part by:


person in relation to the provision for the purposes of this

Part; or



to the provision for the purposes of this Part.

113 Relevant court


under this Part in relation to an undertaking given in relation to a

provision enforceable under this Part, if an Act provides that the

court is a relevant court in relation to that provision for the

purposes of this Part.


Enforceable undertakings Part 6

Accepting and enforcing undertakings Division 2

Section 114


Division 2—Accepting and enforcing undertakings

114 Acceptance of undertakings

(1) An authorised person may accept any of the following

undertakings:

(a) a written undertaking given by a person that the person will,

in order to comply with a provision enforceable under this

Part, take specified action;

(b) a written undertaking given by a person that the person will,

in order to comply with a provision enforceable under this

Part, refrain from taking specified action;

(c) a written undertaking given by a person that the person will

take specified action directed towards ensuring that the

person does not contravene a provision enforceable under

this Part, or is unlikely to contravene such a provision, in the

future.

(2) The undertaking must be expressed to be an undertaking under this

section.

(3) The person may withdraw or vary the undertaking at any time, but

only with the written consent of an authorised person.

(4) The consent of an authorised person is not a legislative instrument.

(5) An authorised person may, by written notice given to the person,

cancel the undertaking.

115 Enforcement of undertakings

(1) An authorised person may apply to a relevant court for an order

under subsection (2) if:

(a) a person has given an undertaking under section 114; and

(b) the undertaking has not been withdrawn or cancelled; and

(c) the authorised person considers that the person has breached

the undertaking.


Part 6 Enforceable undertakings

Division 2 Accepting and enforcing undertakings

Section 115


(2) If the relevant court is satisfied that the person has breached the

undertaking, the court may make any or all of the following orders:

(a) an order directing the person to comply with the undertaking;

(b) an order directing the person to pay to the Commonwealth an

amount up to the amount of any financial benefit that the

person has obtained directly or indirectly and that is

reasonably attributable to the breach;

(c) any order that the court considers appropriate directing the

person to compensate any other person who has suffered loss

or damage as a result of the breach;

(d) any other order that the court considers appropriate.


Injunctions Part 7


Section 116


Part 7—Injunctions




This Part creates a framework for using injunctions to enforce

provisions.

For this Part to operate, a provision must be made enforceable

under this Part. This is to be done by another Act.

Injunctions may be used to restrain a person from contravening a

provision enforceable under this Part, or to compel compliance

with such a provision.

An interim injunction is available.



use of injunctions in the enforcement of provisions.


legislative instrument must be made enforceable under this Part.

118 Enforceable provisions

A provision of an Act or a legislative instrument is enforceable

under this Part if an Act provides that the provision is enforceable

under this Part.


(1) A person is an authorised person for the purposes of applying

under this Part for an injunction in relation to a provision


Part 7 Injunctions


Section 120


enforceable under this Part, if an Act provides that the person is an

authorised person in relation to that provision for the purposes of

this Part.








is an authorised person in relation to a provision for the purposes of

this Part by:


person in relation to the provision for the purposes of this

Part; or



to the provision for the purposes of this Part.

120 Relevant court


under this Part in relation to the contravention of a provision

enforceable under this Part, if an Act provides that the court is a

relevant court in relation to that provision for the purposes of this

Part.


Injunctions Part 7

Injunctions Division 2

Section 121


Division 2—Injunctions

121 Grant of injunctions

Restraining injunctions

(1) If a person has engaged, is engaging or is proposing to engage, in

conduct in contravention of a provision enforceable under this Part,

a relevant court may, on application by an authorised person, grant

an injunction:

(a) restraining the person from engaging in the conduct; and

(b) if, in the court’s opinion, it is desirable to do so—requiring

the person to do a thing.

Performance injunctions

(2) If:

(a) a person has refused or failed, or is refusing or failing, or is

proposing to refuse or fail, to do a thing; and

(b) the refusal or failure was, is or would be a contravention of a

provision enforceable under this Part;

the court may, on application by an authorised person, grant an

injunction requiring the person to do that thing.

122 Interim injunctions

Grant of interim injunctions

(1) Before deciding an application for an injunction under section 121,

a relevant court may grant an interim injunction:

(a) restraining a person from engaging in conduct; or

(b) requiring a person to do a thing.

No undertakings as to damages

(2) The court must not require an applicant for an injunction under

section 121 to give an undertaking as to damages as a condition of

granting an interim injunction.


Part 7 Injunctions

Division 2 Injunctions

Section 123


123 Discharging or varying injunctions

A relevant court may discharge or vary an injunction granted by

that court under this Part.

124 Certain limits on granting injunctions not to apply

Restraining injunctions

(1) The power of a relevant court under this Part to grant an injunction

restraining a person from engaging in conduct may be exercised:

(a) whether or not it appears to the court that the person intends

to engage again, or to continue to engage, in conduct of that

kind; and

(b) whether or not the person has previously engaged in conduct

of that kind; and

(c) whether or not there is an imminent danger of substantial

damage to any other person if the person engages in conduct

of that kind.

Performance injunctions

(2) The power of a relevant court under this Part to grant an injunction

requiring a person to do a thing may be exercised:

(a) whether or not it appears to the court that the person intends

to refuse or fail again, or to continue to refuse or fail, to do

that thing; and

(b) whether or not the person has previously refused or failed to

do that thing; and

(c) whether or not there is an imminent danger of substantial

damage to any other person if the person refuses or fails to do

that thing.

125 Other powers of a relevant court unaffected

The powers conferred on a relevant court under this Part are in

addition to, and not instead of, any other powers of the court,

whether conferred by this Act or otherwise.


General provisions Part 8

Section 126


Part 8—General provisions

126 Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted to be prescribed by this Act; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

[Minister’s second reading speech made in—

House of Representatives on 20 March 2014

Senate on 24 June 2014]

(59/14)


regulatory powers (standard provisions) act 2014 no. 93, 2014

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